EXHIBIT 99.7
CONSULTING AGREEMENT
THIS AGREEMENT is made and entered into this 6th day of July, 2007, between Wall
Street Management & Capital, Inc., located at 000 Xxxxxxx Xxxxx, Xxxxxxxx, XX
00000, (hereinafter referred to as "WSMC") and NuVim, Inc., located at 00 Xxxxx
00 Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000 (hereinafter referred to as the
"Company").
NOW THEREFORE, in consideration of the mutual covenants herein contained, it is
agreed:
1. ENGAGEMENT: The Company hereby engages WSMC to perform consulting services
described in Section 2 of this Agreement, but subject to the further
provisions of this Agreement.
2. CONSULTING SERVICES: WSMC's duties shall consist of the following:
A. Facilitating introductions on a trial basis into three (3)
institutions in Florida including one school district, one large
hospital system, and one large college or university consisting
of at least 25,000 students.
B. Attending all initial meetings with WSMC sources, and follow-up
meetings as applicable
3. TIME OF PERFORMANCE: Services to be performed under this Agreement shall
commence upon execution of this Agreement, and shall continue through
September 30, 2007. Should the Company, any officer or director, or any
owner of twenty percent (20%) or more of the Company, or a family member
thereof (collectively "Principal") utilize any sources introduced by WSMC,
within three (3) years of the termination of this Agreement, for the
benefit of the Company or in any other entity in which the referenced
Principal is, or has an option (i) to be at least a twenty percent (20%)
shareholder, (ii) to receive compensation for management or consulting
services, or (iii) to receive any profits or fees from the sale of products
and services from said entity to a WSMC source, then WSMC shall be
compensated according to paragraph 4 herein. In the event the Company shall
generate revenues from any WSMC sources within the referenced three (3)
year period, the registration of any WSMC source shall remain valid until
such time as three (3) continuous years pass with no revenues being
generated for the Company from such WSMC source.
4. COMPENSATION TO BE PAID BY THE COMPANY: The Company agrees to pay a fee to
WSMC for the services described herein. Said fees are payable, as follows:
A. A one time fee of seventy-two thousand (72,000) shares of Company
common stock payable upon execution of this Agreement. The
payment shall be in the form of freely tradable common stock of
the Company, subject to no legends nor restrictions on selling.
The Company shall cause the forwarding of such free trade shares
via overnight delivery no later than July 11, 2007 in the form of
a stock certificate bearing the name of Xxxxx Xxxxxxx, In the
event such shares are not forwarded in accordance with the
provisions herein, should the closing bid price of such shares
decrease on or after July 12, 2007 and such shares in the form
herein described have not been received by Xxxxx Xxxxxxx by July
12, 2007 , the Company shall issue a quantity of additional
shares to account for the difference in gross value, based upon
the date of actual receipt of said shares by Xxxxx Xxxxxxx. The
parties acknowledge that for calculating the quantity of such
additional shares, the total gross value to be received by WSMC
is to be eighteen thousand dollars ($18,000.00) based on the
closing bid price from the day preceding the receipt of the
additional shares by WSMC.
B. 5% of the gross revenues generated by the Company from WSMC
introduced sources, for a period of five (5) years from the date
of the first contract or purchase order from any respective WSMC
source, payable in cash on a quarterly basis within thirty (30)
days of the end of each calendar quarter. The Company will
provide an appropriate reconciliation schedule showing such
calculations.
C. Company shall pay all reasonable travel costs and expenses
incurred by WSMC in carrying out its duties and obligations
pursuant to the provisions of this Agreement, including but not
limited to transportation, lodging and food expenses, when such
travel is conducted on behalf of the Company, provided all cost
and expense items in excess of one hundred dollars ($100.00) must
be approved by the Company in writing prior to WSMC's incurrence
of the same.
5. LIMITATION OF WSMC LIABILITY: If WSMC fails to perform its services
hereunder, its entire liability to the Company shall not exceed the lesser
of (a) the amount of cash compensation WSMC has received from the Company
under Section 4 of this Agreement or (b) the actual damage to the Company
as a result of such non-performance. IN NO EVENT WILL WSMC BE LIABLE FOR
ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES NOR FOR ANY CLAIM AGAINST
THE COMPANY BY ANY PERSON OR ENTITY ARISING FROM OR IN ANY WAY RELATED TO
THIS AGREEMENT. Company expressly acknowledges that (i) WSMC is making no
representations in terms of assuring that any funding will be obtained;
(ii) Company understands it must employ its own legal, accounting and tax
counsel to review and approve any transactions; (iii) WSMC is in no way
providing legal, financial or tax advice upon which the Company should act
without consulting its own counsel; and (iv) WSMC makes no representations
that any introductions made by WSMC will result in a tangible benefit to
the Company. All work by WSMC is on a "best effort" basis.
6. CONFIDENTIALITY/NONDISCLOSURE/NONCIRCUMVENTION: (A) Until such time as the
same may become publicly known, WSMC agrees that any information of a
confidential nature will not be revealed or disclosed to any person or
entity, except in the performance of this Agreement, and upon written
request of the Company, all materials and original documentation provided
by the Company will either be destroyed or returned at WSMC's option. (B)
Further, the Company agrees not to circumvent or interfere with or attempt
to circumvent or interfere with the business relationships existing between
WSMC and any entities introduced to the Company by WSMC. Should the Company
intentionally violate this provision, WSMC shall be entitled to receive a
fee of ten percent (10%) on all such revenues generated from WSMC sources
until the herein referenced royalty period shall terminate. (C) The Company
may disclose information concerning any source introduced by WSMC to its
professional advisors, such as legal counsel or accountants, but must first
establish that all agents must abide by the Company's obligations and
covenants pertaining to non-disclosure established herein.
7. NOTICES: All notices hereunder shall be in writing and addressed to the
party at the address herein set forth, or at such other address as to which
notice pursuant to this section may be given, and shall be given by
personal delivery, by certified mail, express mail, or by national
overnight courier services. Notices will be deemed given upon the earlier
of actual receipt or three (3) business days after being mailed or
delivered to such courier service. Any notices to be given hereunder will
be effective if executed by and sent by the attorneys for the parties
giving such notice, and in connection therewith, the parties and their
respective counsel agreeing that in giving such notice, such counsel may
communicate directly in writing with such parties to the extent necessary
to give such notice.
8. SEPARABILITY: If one or more of the provisions of this Agreement shall be
held invalid, illegal or unenforceable in any respect, such provision, to
the extent invalid, illegal or unenforceable, shall be modified to the
extent necessary to be legal, valid, and enforceable, and shall not affect
any other provision hereof.
9. MISCELLANEOUS:
A. GOVERNING LAW: This Agreement shall be governed by the laws of
the State of Florida. Venue for all litigation shall be Seminole
County, Florida. The prevailing party shall be entitled to
reimbursement of legal fees and costs, including attorney fees,
regardless of which party initiates legal action.
B. CURRENCY: References to dollars shall be deemed to be United
States Dollars.
C. MULTIPLE/FAXED COUNTERPARTS: This Agreement may be executed in
multiple counterparts, and by fax transmission, each of which
shall be deemed an original. It shall be necessary that each
party execute each counterpart.
D. LIMIT OF PROFESSIONAL CAPACITIES: The parties acknowledge that
WSMC is not serving in an official audit capacity, nor acting as
an attorney, nor in any way providing any formal tax opinions.
WSMC recommends the Company obtain independent legal and tax
counsel to participate in the process.
E. TERMINATION: Should WSMC terminate this Agreement, other than due
to a breach by the Company, WSMC shall forfeit any future
retainer compensation not already earned. Should Company
terminate, other than as allowed herein, WSMC shall be entitled
to all compensation referenced in Section 4.
F. ASSIGNMENT: WSMC shall have the right to assign any proceeds due
under this Agreement.
G. NON-EXCLUSIVE NATURE: The Company acknowledges that Company is
not the only client being provided services by WSMC, and that
WSMC is under no obligation to provide priority treatment to
Company relative to other clients of WSMC. The Company, subject
to the provisions herein, shall have the right to pursue
alternative revenue generation sources.
H. REGISTRATION: The parties acknowledge that any of the following
shall evidence a registration of a WSMC source, provided that the
source (or the third party in the event of (iv) below) has been
disclosed to the Company or is promptly disclosed to the Company
thereafter: (i) a telephonic call between the Company and a WSMC
source, (ii) the e-mailing of contact info to the Company or to a
WSMC source about the other party, (iii) the mailing, faxing, or
e-mailing of any project information to a WSMC source, (iv) any
introductions of third parties who in turn introduce a revenue
source to the Company, (v) any in person meetings between the
Company and a WSMC source, and (vi) any other actions taken which
clearly link WSMC and the revenue source. In the event the
Company is in current and ongoing substantive discussions with a
source that WSMC intends to, or does introduce, the Company will
give WSMC notice within five (5) business days of learning of
such source that the Company does not wish WSMC to pursue said
source. Failure to do so shall qualify such source meeting the
criteria herein as registered to WSMC.
WALL STREET MANAGEMENT & CAPITAL, INC.
By /s/ Xxx Xxxxxxx
Its: President
NUVIM, INC.
By: /s/ Xxxxxxx Xxxxxxx
Its: Chief Executive Officer
